Legal News & Views

In RFA 11/2017, SMT KALPITA DEB vs SMT KAJORI DEB, the appellant had sought her equal share in the suit property. But the defendants contended that she relinquished her right over the land as per an alleged agreement dated 25-11-2004 which was assailed as forged by the appellant. The trail court however agreed with the defendants and that the suit was not maintainable, purportedly on the basis of the proviso to sub-section (1) and sub-section (5) of Section 6 of the Hindu Succession Act (as amended in 2005) since as per the said provision any partition or disposition or alienation or testamentary disposition of property having taken place before 20th December, 2004 have been excluded from the purview of the amended section 6 of the Hindu Succession Act, and that the amended provision of Section 6 of the Hindu Succession Act was prospective. On appeal the High Court observed that Section 6(1) relates to the interest in coparcenary property only. So far as the general ...

In CRR No. 2487 of 2018, N.K. Bhagat vs Biswanath Dey, the original complainants had filed under Section 138 against the petitioners alleging that Alok Bhagat (Petitioner 2), who was the authorised signatory of Adeptics, a partnership firm, issued a cheque for Rs 1.5 lakhs for receiving goods from complainant’s factory. However, when presented to the bank, the said cheque got dishonoured with the endorsement–payment stopped by the drawer. A demand notice was sent but the petitioners failed to make payment. The matter went to trial and the petitioners were convicted and sentenced. In the appeal, their conviction was maintained but the sentence was modified. Aggrieved still, the petitioners filed the present revision petition. It was pointed out by the petitioners that the cheque was issued by the firm and signed by Mr Bhagat as an authorised signatory but the firm was not impleaded as required under law to fasten liability upon the partners/directors of a firm/company. The High...

In Shoda Devi v. DDU/Ripon Hospital Shimla, in a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the Supreme Court awarded Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission.  The Court said that such granting of reasonability higher amount of compensation was necessary to serve dual purposes: 1) to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and 2) to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity. The Woman brought to the Court’s notice that she continuously suffered excruciating pain during the entire surgical procedure and despite bringing the fact ...

In Vijay Industries v. Commissioner of Income Tax, the question before the Supreme Court was whether the deduction allowed under Section 80HH(1) of the IT act was on the gross profits and gains as claimed by the assessed or on net income from profits and gains in the manner provided under Sections 28 to 44B, after allowing deductions for depreciation, unabsorbed depreciation and investment allowance.as claimed by the tax department.  The Supreme Court agreeing with the department said that Sections 28 to 44B relating to income from profits and gains of business or profession fall within Chapter IV of the Act, which deals with computation of total income. This income is computed after giving deductions to factors like depreciation, investment allowances etc. Section 80HH falls within Chapter VIA, which deals with deductions to be made in computing total income. So the bench had to decide whether the meaning of income under Chapter IV should be applied to Chapter V...

In Shri Ram Mandir Indore v. State of Madhya Pradesh, the appellant had contended before the Supreme Court that the Ram Mandir in question is a private temple established by predecessor Gurus and that the properties had been given to the suit temple as Inam and Ram Das was not a mere pujari but the Mahant of the said temple entitled to manage and administer the temple and the suit properties. The appeal was against the judgment of the Madhya Pradesh High Court which had declared the temple as public and the suit property vested in the Deity; and Ram Das and then Bajrang Das are only pujaris and not Mahant-Manager of the temple. The Supreme Court agreeing with the High Court noted the following points :- 1) In 2013, Madhya Pradesh Government published a Directory containing names of all public temples in District Ujjain updating till 31.12.2012, wherein the said temple has been shown as a public temple and Bajrang Das and Ram Das are only shown to be the pujaris. 2)...

In Birla Institute of Technology v. State of Jharkhand, the Supreme Court had earlier on 7.1.19 held that teachers are not entitled to claim gratuity as per the ruling in Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officer, (2004) 1 SCC 755. The earlier ruling is available here . However, it was later brought to Court’s notice that the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997 and the teachers were brought within the purview of “employee”. Based on the changed law, the Supreme Court decided : 1) the law laid down by this Court in the case of Ahmadabad Pvt. Primary Teachers Association was no longer applicable against the teachers, as if not rendered, and 2) the teachers were held entitled to claim the amount of gratuity under the Payment of Gratuity Act from their employer with effect from 03.04.1997.

In CRIMINAL APPEAL NOS. 680­681 OF 2009, Pattu Rajan vs The State of Tamil Nadu, the matter was abduction of a married couple and subsequent death of the husband. The first FIR was lodged against the abduction  and subsequently on the discovery of the dead body of the husband, the second FIR was lodged.  In the appeal before Supreme Court, one of the main points raised by the counsel for accused was that the second FIR was illegal, as there was already an FIR registered for a crime in the same transaction. It was argued that the second alleged offence was a continuation of the first alleged offence, and separate FIR could not have been registered. Therefore, the investigation and trial on the basis of illegal FIR are wholly vitiated, argued the appellants. The Court also rejected the argument that police should have carried out further investigation in relation to murder in the first FIR of abduction, instead of registering a separate FIR. But the SC rejected thi...

In CIVIL APPEAL NO. 3182 OF 2019, KOLKATA WEST INTERNATIONAL CITY PVT LTD vs DEVASIS RUDRA, the respondent had approached the State Consumer Forum not having received delivery of house 3 years after extended due date. Relief sought was delivery with penal interest as compensation or refund. The State Forum ordered compensation with penal interest of 12% along with refund. The NCDRC on appeal modified the compensation only. Before the Supreme Court, the builder argued that as the buyer had claimed delivery with compensation as the primary relief in the consumer complaint, he was estopped from seeking a refund particularly when the builder was prepared to give delivery. The Supreme Court agreeing with the NCDRC decided that even after 7 years the delivery of the house is still uncertain and that a buyer cannot be required to wait indefinitely for possession.

In CRIMINAL APPEAL NO. 508 OF 2019, ROHITBHAI JIVANLAL PATEL vs STATE OF GUJARAT, after examining the record, the Trial Court found that the accused had admitted his signature on the cheques and, with reference to the decision of this Court in the case of Rangappa v. Sri Mohan drew the presumption envisaged by Section 139 of NI Act. However, after having drawn the presumption, the Trial Court found several factors in favour of the accused and observed, inter alia, that there was no documentary evidence to show the source of income for advancing the loan to the accused. After the High Court overturned the trial court order and matter reached the Supreme Court. The Supreme Court opined that the basic questions to be addressed to are two-fold: as to whether the complainant-respondent No. 2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the accused-appellant had been able ...

In Prof RK Vijayasarathy vs. Sudha Seetharam, Karnataka High Court rejected the prayer of the appellants to quash the criminal proceedings instituted by the first respondent against them. The Appellants had stated that no offence is made out from the averments in the complaint as they stand and that the subject matter of the present dispute is of a civil nature and the criminal complaint constitutes an abuse of the process of the court. On appeal, the Supreme Court found that the respondents have alleged in the complaint that the appellants have committed offences under Sections 405, 406, 415 and 420 read with Section 34 of the Penal Code. The Supreme Court observed that the High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. The complaint must be examined as a whole, without evaluating the ...

In REVISION PETITION NO. 2840 OF 2018, STATE BANK OF INDIA vs MANIKA SARKAR, Respondent/Complainant was receiving pension in her Savings Bank Account, jointly held with her son, an employee of the Petitioner Bank. The Bank Authority froze the Respondent’s Account, since her son was charged with misappropriation of money. It was stated that due to the said action of the Petitioners, transactions in respect of the Pension Account became barred, subjecting the family pensioner to utter deprivation from enjoying her pension, which was her sole source of sustenance. The complaint filed before the District Forum was opposed by the Bank stating that the complainant was not a consumer and the account in question was not a pension account. The District Forum accepted the complaint stating that pension is meant for survival of the pension holder, which cannot be attached or withheld by any one. The petitioners appealed before the state forum which upheld the decision of the District forum. ...

In CRIMINAL APPEAL NO. 483 OF 2019, RIPUDAMAN SINGH vs BALKRISHNA, cheques issued for part payment of the consideration settled as per agreement for sale of certain agricultural land were returned by bank due to insufficiency of funds. The trial court framed the charges but the High Court quashed the complain stating that the cheques were issued for the payment of balance consideration and therefore no existence of  enforceable debt. On appeal the Supreme Court disagreeing with the High Court decided that admittedly, the cheques were issued under and in pursuance of the agreement to sell. Though it is well settled that an agreement to sell does not create any interest in immoveable property, it nonetheless constitutes a legally encforceable contract between the parties to it. A payment which is made in pursuance of such an agreement is hence a payment made in pursuance of a duly enforceable debt or liablity for the purposes of Section 138.

In In Ramakrishna Mission vs. Kago Kunya, an employee of the Hospital managed by the Mission had filed a writ petition before the High Court seeking a direction to the management to allow him to continue in service until he completes thirty- five years of service, counting the appointment from 31 March 1982 when he was substantively appointed as a Nursing Aid.  The objection of the Appellant against filling of a writ against it was dismissed by the learned Single Judge of the Gauhati High Court holding that Ramakrishna Mission is ‘State’ within the meaning of Article 12 of the Constitution of India. In appeal, the Division Bench held that while Ramakrishna Mission may not be ‘State’ within the meaning of Article 12 in the strict sense of the term, nonetheless its hospital at Itanagar performs a public duty and in consequence would be amenable to the writ jurisdiction under Article 226 of the Constitution on a liberal interpretation of the expression ‘authority’ in that Ar...

In Civil Appeal No 2614 of 2019, National Insurance Co. Ltd. vs Smt. Mousumi Bhattacharjee, the interesting issue was claim accidental death from mosquito bite. The insured while working in Mozambique died of malaria and the insurer rejected the claim on the ground that the policy was for protection against personal accident and death from mosquito bite was not accidental death. However, the District, State and even the National Consumer Forum went against the insurer who finally appealed before the Supreme Court. The problem was what constitutes an accident. The NCDRC also noted that website of the Insurance Company, an accident may include events like snake bite, frost bite and dog bite. The Supreme Court looked into precedents set by both Indian as well as International courts while responding to similar issues and observed that in order to constitute an accident, the event must be in the nature of an occurrence which is unnatural, unforeseen or unexpected. The present ...

In CIVIL APPEAL NO. OF 2019, Principal Commissioner of Income Tax (Central) - 1vs NRA Iron & Steel Pvt. Ltd., the Supreme Court has held that the practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee. Referring to various judgments in the matter, the bench summarized the principles as follows: 1) The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the...

In RFA.No. 657 of 2015, V.T.VIJAYAN vs U.KUTTAPPAN NAIR, the question before the Full Bench of the Kerala High Court was whether an agreement for sale executed by a party to the lis, during the pendency of the suit is hit by the doctrine of lis pendens or not? The Bench observed that Section 52 of the Transfer of Property Act states that during the pendency of any suit or proceedings, which is not collusive; an immovable property cannot be transferred or otherwise dealt with by any of the parties to the suit or proceedings, so as to affect any other party thereto, except under the authority of the court. Further Lis pendens literally means a pending suit and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit, pending the continuance of the action, and until final judgment therein. The Bench also observed that as per the Privy Council, the broad purpose of Section 52 is to maintai...

In Company Appeal (AT) (Insolvency) No. 205 of 2017, Pr. Director General of Income Tax (Admn. & TPS) vs M/s. Synergies Dooray Automotive Ltd., the two questions before the NCLAT were :- (i) Whether the ‘Income Tax’, ‘Value Added Tax’ or other statutory dues, such as ‘Municipal Tax’, ‘Excise Duty’, etc. come within the meaning of ‘Operational Debt’ or not? and; (ii) Whether the Central Government, the State Government or the legal authority having statutory claim, come within the meaning of ‘Operational Creditors’? For the first question, the NCLAT decided that as per the definition of ‘Operational Creditor’ and the ‘Operational Debt’ as defined in Section 5(20) and Section 5(21) of the Insolvency Code, that there is no ambiguity in the said provision and the legislature has not used the word ‘and’ but chose the word ‘or’ between ‘goods or services’ including employment and before ‘a debt in respect of the payment of dues arising under any law for the time being in force...

In CRIMINAL APPEAL Nos.403­405 OF 2019, A.R. RADHA KRISHNA vs DASARI DEEPTHI, the High Court at Hyderabad had quashed a complaint filed by one AR Radha Krishna against the directors of the company. The complaint was filed after six cheques for Rs.25,00,000 each and one cheque for Rs.30,00,000 were drawn on different dates by the authorised signatory, i.e., M.D. of M/s Dhruti Infra Projects Limited, were returned dishonored. In the appeal filed by the complainant, the Apex court bench observed that the High Court was not justified in allowing the quashing petitions by invoking its power under S.482, Cr.P.C. The Court decided that in a case pertaining to an offence under S. 138 and S. 141 of the Act, the law requires that the complaint must contain a specific averment that the Director was in charge of, and responsible for, the conduct of the company's business at the time when the offence was committed. The High Court, in deciding a quashing petition under S. 482, Cr.P.C.,...

In CIVIL APPEAL No. 5217 OF 2010 before Supreme Court, Asharfi Devi vs State of U.P. & Ors., the High court has dismissed the writ petitions filed by one Asharfi Devi challenged the ceiling proceedings against her. Review petitions filed against this was also dismissed by the High court. On appeal, the Supreme Court noticed that the writ petitioner never challenged the legality and correctness of the main order dated 14.03.2008 passed in the writ petition but confined her challenge only to the order dated 16.12.2008 passed in the review application. The Court said that this appeal does not arise out of the main order but arises out of review order only and, therefore, we cannot examine the legality and correctness of the main order in this appeal like an Appellate Court.The court then proceeded to hear the matter and agreed to examined the matter only with a view to find out as to whether the High Court was right in dismissing the review application and thereby justified i...

In Sumit Kumar Saha vs Reliance General Insurance Co Ltd, an appeal challenging the order of National Consumer Redressal Commission was filed before the Supreme Court. The subject of the dispute was appellant's Volvo Hydraulic Extractor, purchased in 2007 for a total purchase value of Rs.51,74,000, which was insured with the respondent. The policy was renewed for the year 2009-10 with the 'sum insured' of Rs.46,56,000/-. In 2010, the excavator got damaged in fire. The insurance surveyor estimated loss on 'constructive total loss basis'. The surveyor applied depreciation at 32.5% for the period of three years and three months from the date of purchase of the excavator. The appellant claimed that it was entitled to the sum insured of the excavator, being a case of total loss and approached the State Consumer Commission, against the settlement offered by insurer based on surveyor's estimate. The State Commission found that the insurer erred in applying...

In CIVIL APPEAL NO._1575__OF 2019,  Tanu Ram Bora vs Promod Ch. Das, appeal was filed before the Supreme Court against the judgment of the Guwahati High Court. The appellant herein/original plaintiff had purchased the suit land by a registered sale deed dated 06.01.1990 from Late Pranab Kumar Bora, husband of original defendant no.2 and father of original defendant nos. 3 to 8. It appears that the suit land was declared as ceiling surplus land in the year 1988 and consequently the same was acquired by the Government. However, subsequently on 14.09.1990, the suit land was again declared ceiling free land. That thereafter, the original plaintiff mutated the land in his name vide order dated 18.12.1991 in Mutation Case No.94/91­ 92, and accordingly the name of the original plaintiff was recorded in the Sadar Jamabandi. It appears that the original defendant no.1, an Ex­-Police Officer. illegally entered into the suit land on 09.04.1995.  Therefore, the original plaintiff...

In Tek Singh vs. Shashi Verma, the trial court had dismissed an interlocutory application in a suit filed under Section 6 of the Specific Relief Act. The interlocutory application filed under Order 39 Rule 1 CPC was dismissed by Trial Court holding that the relief asked for could not be granted as it would amount to decreeing the Suit itself. The First Appellate Court dismissed the appeal. In the revision petition filed under Section 115 CPC, the High Court set aside the concurrent findings of fact and allowed it. The Supreme Court observed that the 1999 amendment to the CPC added a proviso Section 115 which states that after 1999 or even otherwise, the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only.  The court also observed that a mandatory injunction granted at the interim stage could be granted only if a 'much more than a mere prima facie case' is made out. Article referred: https://www.livelaw.in/know-the-...

In Sunita vs. Rajasthan State Transport Corporation, the High Court had set aside the Tribunal mainly on the ground that the best witness in the case was the pillion rider, who had survived the accident, and he was not examined. It also observed that Tribunal erred in placing reliance on the deposition by another witness who could not even tell in his cross--examination with regard to the age of the person, who was sitting on the pillion seat. In appeal filed by claimants, the Apex Court bench observed that non- examination of the pillion rider, would not be fatal to the case. The court said that the approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability. With regard to the other witness, the bench observed that inabili...

In CIVIL APPEAL NO. 1464 OF 2019,  Employees' State Insurance Corporation vs Venus Alloy Pvt. Ltd., the Supreme Court has held that Directors of Company, who are receiving remuneration, comes within the purview of "employee" under sub-section (9) of Section 2 of the Employees' State Insurance Act, 1948. Article referred: https://www.livelaw.in/top-stories/company-directors-employees-under-esi-act-if-receives-remuneration-sc-142666